erate of those of others, and scrupulously fair in his treatment of them. He was a good lover and a good hater, but he loved only what was good and hated only what was hateful. He was thoughtful on religious subjects, and was a Christian, but had never professed any sectarian faith. Unambitious and unspoiled, his was a strong, positive, fearless, independent, honest nature, refined by a chivalric tenderness and loyalty, with high and earnest aims, bent on duty, and obedient to conscience.

The readers of this volume will take a mournful interest in perusing the last words ever written by Mr. THOMPSON, contained in a letter of the 26th August, 1879, and strongly characteristic of the writer: "I have had three confoundedly uncomfortable days and nights, with very good prospect of several more in the near future. A good sharp attack of diphtheria, with your tongue swollen so large as to leave very little room in the mouth and throat, and with a thousand little imps sticking daggers into you every time you try to swallow- and you always are trying to swallow - with your family and friends excluded, always save the good kind wife; with a rousing head-ache and ear-ache and neck-ache; dozing between swallows ali day, and all night gazing at the light, trying to remember what consummate old humbug it was who said that a minute had but sixty seconds; oh, I can assure you it is simply "orrible.' Good-bye. I hope to see you in the flesh soon." Here we get his whole minor nature-patient, cheerful, humorous, affectionate, hopeful.

Death is nearly always untimely. It generally strikes us just as we are learning how to live. Our departed friend was not expecting, still he was not unprepared, to die. In his delirious moments his constant moan was that he had not done his work. How few men, how few in our exacting profession, have done theirs so faithfully, so intelligently! He has now ceased to be a teacher, and begun to be a learner. We shall love to think of him in the boundless hereafter, freed from the environments of his mortal nature, and learning, at the feet of that beneficent Being whom he trusted, that eternal and immutable Law whose seat is in the bosom of God, whose voice is the harmony of the world. I. B.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MAINE.

JONES V. BACON.

(68 Me. 34.)

Will-devise for life with power of disposal.

An absolute power of disposal in the first taker renders a subsequent limitation repugnant and void.

* *

Thus, where the testator, after making sundry bequests, proceeds as follows: “And as to the residue of my estate after payment of my just debts, I give and bequeath the same to my beloved wife. And lastly, I further direct if there be any of my said estate left after the decease of my said wife, then the said property left be equally divided between G. and T." Held, that the residue of his estate after the payment of his just debts and legacies vested absolutely in his wife. (See note, p. 4.)

ILL IN EQUITY, to determine the construction of a will. The opinion sufficiently states the facts.

S. D. Lindsey, for plaintiff.

S. Lancaster, for defendant.

APPLETON, C. J. This is a bill in equity, brought by the plaintiff, as administrator with the will annexed of the estate of John Ham, against the defendant, as administrator of the estate of Harriet Ham, his wife, under the provisions of R. S., ch. 77, § 5, for the purpose of obtaining the construction of his will.

VOL. XXVIII- 1

Jones v. Bacon.

The testator after making sundry specific bequests proceeds as follows: "And as to the residue of my estate, whatever after payment of my just debts, I give and bequeath the same to my beloved wife, Harriet Ham, whom I appoint sole executrix of this my last will and testament."

The testator gives and bequeaths "the residue of his (my) estate" to his wife whom he appoints executrix. The language is the same used in the preceding specific legacies. The words embrace the entire remainder of the estate. This remainder is given to the wife. It is given in the same terms as the other legacies, which are unquestionably absolute and which vested in the legatees. No limitation is imposed as of an estate for life. The residue is subject to the payment of the just debts of the testator. The wife is given an absolute and uncontrollable power of disposal of the estate bequeathed. "If estates," observes SHEPLEY, J., in Ramsdell v. Ramsdell, 21 Me. 288, 293, "be devised to a person with or without words of inheritance, and with an absolute right to sell and appropriate the proceeds at pleasure to his own use, it is not perceived how there can be a vested interest imparted to another in the same estate or property. Such full dominion in the devisee or legatee is inconsistent with and destructive of all other rights." In Gifford v. Choate, 100 Mass. 343, HOAR, J., says: "An absolute power of disposal in the first taker is held to render a subsequent limitation repugnant and void." In Hale v. Marsh, 100 Mass. 468. the testator gave all the property to his wife for life with power to dispose of the whole or any part thereof, real or personal, at her pleasure, and to manage and improve the same at her discretion, and if the income was not sufficient for her complete maintenance, he gave her power to expend so much of the principal as she might elect and for such purposes as she might deem expedient, with full power to dispose by will of such portion as might remain unexpended at her decease; but if she should die leaving any unexpended and not disposed of by will, he gave it to a third person. "The gift is of a life estate," says FOSTER, J., in delivering the opinion of the court, "with a full power of disposition, both by deed and will, over the entire property, without restriction as to the time, mode or purposes of the execution of the power. In such case, the authorities seem to hold that the life estate and unlimited power of disposition over the remainder coalesce and form an estate in fee, and that the devise over of what

Jones v. Bacon.

may remain is void, because inconsistent with the unlimited power of disposition given to the first taker." In Ide v. Ide, 5 Mass. 500, which is somewhat similar to the one under consideration, PARSONS, C. J., says: "Whenever, therefore, it is the clear intention of the testator that the devisee shall have an absolute property in the real estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first devisee."

There would not even a question be made as to the meaning of the bequest just considered, were it not for the last clause in the will, which is as follows: "And lastly, I direct if there be any of my said estate left after the decease of my said wife, then the said property left be equally divided between Jacob Gilman, Caroline A. Thompson and Sally Brown, my sister, if she be living at the time; if not, her share to go to her husband, John Brown, if he be living, and if neither the said Sally Brown nor her husband be living, the said property be equally divided between the said Jacob Gilman and Caroline A. Thompson.'

But the remainder, as we have seen, has been already disposed of. It was the wife's, charged with the payment of just debts. She had the uncontrolled power of disposal of it. The last clause is not to be regarded as a withdrawal of what had just been devised. When property has been devised absolutely, and with no restrictions upon the gift, the court will be slow in giving such a construction to subsequent words as will defeat the absolute estate "A valid executory devise cannot subsist under an just devised. 66 absolute power of disposition in the first taker." 4 Kent's Com. 270. Here was an absolute power of disposition in the wife.

The cases cited for the defendant differ materially from the one before us. In Stevens v. Winship, 1 Pick. 318, the devise was to the wife for life with power to sell in case of need. In Field v. Hitchcock, 17 Pick. 182, a bequest of money to one for life and then over was held a gift of the interest and not of the principal. Here the bequest was absolute and not contingent upon its being needed by the wife for her support.

According to the true construction of the will of John Ham, it is declared:

That the residue of his estate after the payment of his just debts and legacies vested absolutely in Harriet Ham, his wife.

And it is ordered and decreed that the reasonable costs and

Jones v. Bacon.

charges of these proceedings be a charge upon the estate of said John Ham.

DICKERSON, DANFORTH, PETERS and LIBBEY, JJ., concurred. NOTE BY THE REPORTER.-Redfield on Wills, vol. 2, p. 277, 33, says: "It is a settled rule of American as well as English law, that when the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift. Thus a devise to the testator's son P. of certain real and personal estate, and to his heirs and assigns forever, adding, that if P. should die and leave no lawful heirs, what estate he should leave to be divided between another son and a grandson of the testator, naming them, it was held that the devise over was void as being inconsistent with the absolute interest in the first devisee. This exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property." Citing Ide v. Ide, 5 Mass. 500; Ramsdell v. Ramsdell, 21 Me. 288, 293; Att'y-Gen. v. Hall, Fitz. 314; Timewell v. Perkins, 2 Atk. 102; Burbank v. Whitney, 24 Pick. 146; Jackson v. Coleman, 2 Johns. 391; Same v. Bull, 10 id. 19; Same v. Robins, 15 id. 169; Melson v. Cooper, 4 Leigh, 408; Barnard v. Bailey, 2 Harring, 56; Jackson v. Delancy, 13 Johns. 537. In Hall v. Preble, 68 Me. 100, a testator made his widow residuary devisee with power to hold and use all the property during her life, and expend all of it if necessary for her care, comfort or support. Held, 1. That she took a life estate, with full power to convey the real estate in fee, at pleasure, without restraint as to her use of the proceeds for her care, comfort or support. 2. That she was made the sole judge as to whether it was necessary to convey for the purpose named. 3. That her quitclaim deed of land in the usual form was a sufficient execution of her power under the will, and conveyed the fee.

The court said: "The general rule is well settled that 'a devise to one without words of inheritance' but containing the power to dispose of the property without qualification, is treated as equivalent to a devise with words of inheritance." Shaw v. Hussey, supra; Ramsdell v. Ramsdell, 21 Me. 288; Hale v. Marsh, 100 Mass. 468, and cases cited. To this general rule the courts have established an exception. In Ramsdell v. Ramsdell, this court, after a careful examination of the authorities, declared it thus: The rule to be extracted from these cases would seem to be, that where a life estate only is clearly given to the first taker, with an express power on a certain event or for a certain purpose to dispose of the property, the life estate is not by such a power enlarged to a fee or absolute right; and the devise over will be good.' In Shaw v. Hussey, it is stated thus: The exception is, when a testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal.'

In Johnson v. Battelle, 125 Mass. 453, it was held that under a will containing the following clause: "All the rest, residue and remainder of my estate, real, personal or mixed, of whatever name or nature, I devise and bequeath to A for his comfort, support and maintenance during his natural life, and at the decease of A, whatever of said estate remains unexpended by him, then I give and bequeath the same to B," A takes an estate for life, with a power to sell and convey in fee, if necessary for his support and maintenance; and the remainder over is contingent on its not becoming necessary to exercise that power.

In Gibbins v. Shepard, 125 Mass. 541, a will contained the following clause: "After payment of my just debts and funeral expenses, I give and devise to my wife one-third of all my real estate to her sole use and behoof forever, together with all the furniture or personal property now in the house, and the other two-thirds I leave in her power and bequeath to her for her support during her life-time, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve." The personal estate was insufficient to pay the debts and funeral expenses, and the administrator with the will annexed sold the real estate, and had a sum remaining in his hands after paying such debts and expenses. Held, that the wife took an estate in fee in one-third of the residue; that, as to the other two-thirds, she took at least an estate for life, with a power to convey the fee and to receive the proceeds; that she was entitled to the residue of the proceeds in the administrator's hands, and to use them at her discretion for her support; and that no trust was created by the will in favor of the children.